When a court turns politics into law

FORMER Yale Law School Dean Guido Calebresi warned about tragic choices, where he mentions a certain amount of dishonesty and subterfuge which accompanies the judicial decision-making process to reach a particular result.

The Supreme Court of Appeal (SCA) in the matter of Democratic Alliance versus the President and Others in a unanimous opinion, penned by Justice M. S. Navsa, held that the president failed to comply with the precepts of the Constitution and the National Prosecuting Authority Act by appointing Menzi Simelane as the National Director of Public Prosecutions (NDPP). The Ginwala Inquiry, headed by Dr Frene Ginwala, to investigate the previous NDPP Vusi Pikoli, made findings that Simelane had in his capacity as Director General of the Department of Justice, among other­ things, provided untruthful evidence. The court concluded “based on the reasoning in relation to the inquiry alone, the decision to appoint Simelane should be set aside”. The inquiry findings, the court held, had implications on whether Simelane was a fit and im- proper person to be appointed as the NDPP.

Judicial review under our Constitution is beyond dispute. The first thing in a constitutional inquiry is to determine what counts as a constitutional argument for purposes of a case or controversy. A constitutional argument cannot emerge because someone lost through the political process. The Democratic Alliance (DA) and other conservatives would like to understand the Constitution as replete of impediments, even in instances where none exist. The legitimacy of judicial review hinges on the court grounding its decisions in these challenges on precedent and constitutional theory.

The SCA considered the findings of the inquiry to be an objective truth and not something for the president to assess. The court pays lip service to the core values of the Constitution such as the rule of law and legality. The ultimate decision and the reasoning, which underpins the result, are extraordinarily brazen. It signifies an abject dereliction of the court’s judicial function and lack of respect for the core values of the Constitution. The inquiry was neither a court of law nor a competent independent tribunal in terms of what our Constitution or international human rights would require. Instead, it was an ad hoc inquiry led by a political appointee (the former speaker of the National Assembly) selected by a prior president during a period of Machiavellian subterfuge and political­ manoeuvrings within the ruling party. The court takes no cognisance of this reality.

In its very first judgment, our Constitutional Court per Kentridge AJ held that all adverse findings against an individual have to be conducted with notions of basic fairness and justice. One would have expected the second highest court of our land to uphold the importance of fair and impartial procedures when it spoke about rationality and lack of arbitrary action on the part of the president. Given the importance of what was at stake, an independent and impartial tribunal under international human rights would require a tribunal independent of other organs of government in terms of separation of powers. The Constitutional Court held per Judge Laurie Ackermann in Bernstein , commenting on the right of access before an independent and impartial tribunal, separation of powers requires that “courts and other fora which settle justiciable disputes are independent and impartial”. Judge Ackermann stated it is a “provision fundamental to upholding of the rule of law, the constitutional state”. Ginwala may have performed her investigative task in good faith. However, she was a consummate political operative appointed during the midst of a nasty intra-party conflict. Unlike a judicial commission, her inquiry cannot be deemed to be an independent, impartial or competent tribunal. Accordingly, its findings cannot satisfy the indispensable prerequisites of fairness and justice.

The tenor of the judgment in finding that the president ignored relevant considerations suggests that the inquiry’s conclusions were valid. To suggest the inquiry findings represent objective truths and something the president was bound by is simply mind-boggling. At the time the inquiry was appointed, the DA criticised Ginwala as a “party hack”. In a complete flip-flop, they found it politically expedient to invoke her report to impugn the integrity of Simelane. At what point she transformed from a “party hack” to an independent and impartial tribunal and how that transformation occurred remains unanswered. The SCA required the president to interrogate the report of the inquiry. Shockingly, the court fails to evaluate the nature of the inquiry in terms of whether it constituted an independent and impartial tribunal and whether the procedure it followed satisfied the requirements of fairness and justice. What the SCA conspicuously ignored: if the inquiry was not an independent and impartial tribunal under the Constitution, then the probative value of its findings is limited. By failing to address the antecedent question whether the inquiry was an independent and impartial body under the Constitution, the court in effect performed the role of a political protection agency for the opposition party that found things in the report to further their political objectives.

There were and still remain opportunities to test before a court whether Simelane is “fit” and “proper” to practise as an advocate. In the absence of a proper and legal finding of wrongdoing before an independent tribunal, courts all over the world instruct us that the judiciary should not pronounce on actions of the co-equal branches of the government. Otherwise the judiciary would be entangling themselves in a thicket, which is not legal but political. The end result would be politics masquerading as law.

One would have expected that in the absence of a finding by an independent and impartial tribunal on Simelane’s fitness to practise law, the SCA would have followed the principal constraint for most judges, which is deference to the decisions of the democratically elected organs of government. This is what the trial judge adhered to. The reasons for this are multifaceted, including a conception of separation of powers that recognises the superior institutional capacity and legitimacy of the political organs to make the empirical assessments for these kinds of decisions. In constitutional theory, the structure of the government and institutional relationships, are as important to interpretation as any specific text. Even though separation of powers does not appear in the constitutional text, it is a concept, which derives from the document understood as a whole. The SCA was woefully short in failing to fully consider constitutional theory and interpretation and the type of reasoning that comes from relationships created by the constitutional structures of the government. Instead, it egregiously aggrandised power and injected itself into a

contentious political dispute casting it as a legal question.

Adhering to separation of powers­ also means recognising that political institutions at times, for some, may fall short of the ideal. There is a difference between perceptions of political choices being awful which is not the same as unlawful. Judges and courts may also not perform their functions in an ideal fashion. In the majority of cases, judges decide cases fairly and wisely. Some judges are biased, some lazy, and some unintelligent. Many have a problem transcending the interests of their class, race or gender. That is to say, all human institutions fall short of the ideal. This does not mean that the judiciary should be deprived of its proper role any more than it means the judiciary­ should disregard political institutions and the choices which political institutions make. This was an unbounded assertion of judicial­ review by the SCA towards a result orientation as opposed to a principled adjudication.

When jurists criticise the decision of the SCA, they are not criticising judicial review. Instead, it is a criticism of whether the SCA adhered to the pre-eminent and indispensable constraint on judges which is the disciplining constraint of the interpretive community to which they belong. The SCA stated that the Constitution stands for an end to tyranny. Unfortunately, they failed to apply this supreme maxim to themselves. They ignored established rules of fairness, which dictate that adverse findings should be made by an independent and impartial tribunal and resorted to the judges personal choices based on their intuition of the merits of the inquiry findings. They also cast aside the prerogatives of the exe-cutive branch. This cannot represent the edifice of judicial review. The court touches on the motive behind the decision of the president. Questions of motive, although relevant in exceptional circumstances, are a slippery

slope inquiry, which the highest courts of many countries eschew. If one engages in an inquiry of motive, some might deduce that a political bias, bad faith and animus towards Simelane and the president, drove the SCA to the intuitive decision given their failure to adhere to established rules of fairness.

If this is an appetiser for the way our courts will decide future disputes, the trajectory of where we are heading does not portend well for judicial review and our democracy.

How the Constitutional Court deals with the appeal is likely to prove most important.

• This was first published in Legalbrief Today. Ziyad Motala is Professor of Law, Howard Law School and Extraordinary Professor of Law, University of Western Cape.

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